206 P. 620 | Mont. | 1922
delivered the opinion of the court.
Action for damages for breach of a contract. It is alleged that in January, 1917, one Julius Bain was the owner of a tract of land situated in the counties of Fergus and Chouteau consisting of 3,600 acres; that he (Bain) had executed and delivered to one James Awberry an option contract for the sale to him of the land at the price of $20 per acre; that on or about February 15, 1917, the defendant agreed with the plaintiff that if plaintiff would procure the assignment of the option contract to defendant by Awberry so that, he could have the right to purchase the land at the price named therein, he would pay the plaintiff a commission of one dollar per acre, or five per cent of the entire purchase price named in the option contract; that plaintiff, pursuant to the agreement, induced Awberry to assign the option contract to defendant; that subsequently the defendant purchased all the land from Bain at the price of $20 per acre; and that the plaintiff became entitled to demand of the defendant, and did demand of him, the payment of $3,600, which he refused.
The defendant' admitted that the land was owned by Bain ,and that defendant purchased it during the year 1917 at the price of $20 per acre, amounting to the total sum of $72,000, but denied all the other allegations of the complaint. As a special defense he alleged that the agreement under which the defendant was sought to be charged, was one of employment of an agent or broker to purchase real estate upon a commission; that it was not embodied in writing, and that it was therefore void under subdivision 6 of section 5017 of the Revised Codes of 1907 (sec. 7519, Rev. Codes 1921). As a second special defense he alleged that during the year 1916-17 the plaintiff and defendant had various business
Plaintiff by reply tendered issue upon all the allegations of the first and second special defenses, except that he admitted that a settlement did take place between the plaintiff and defendant as alleged in the answer, and alleged that it was not connected in any way with the transaction out of which this action arose. Upon the issues thus framed the cause was submitted to the court without a jury. It found the facts as alleged in the complaint and rendered judgment in favor of the plaintiff. Defendant has appealed from the judgment and an order denying his motion for a new trial. Counsel has made several assignments of error in his brief, but all of them present the one question, namely: Was the evidence sufficient to justify the findings?
Counsel insists that.since it appears from the evidence that
Awberry having acquired no interest in the land, but a mere personal privilege which he could lawfully assign to the defendant (Winslow v. Dundom, supra), the agreement- between the plaintiff and the defendant did not amount to an
Counsel contends further, that the evidence taken as a whole was insufficient to justify the finding that the agreement was made as alleged, particularly so in view of the settlement made between plaintiff and defendant on June 8, 1917, after plaintiff’s services had been rendered. There was a direct conflict in the testimony of plaintiff and defendant as to the making of the agreement as well as to the procurement of the assignment by plaintiff. There was no controversy but that the option was obtained from Bain by Awberry about January 20, 1917, and that the latter assigned it to the defendant on or about March 15, 1917. The plaintiff testified that after he was employed by defendant to procure the assignment from Awberry, he found Awberry and took him to the defendant and thus brought about negotiations between them which resulted in the making of the assignment. The defendant testified in substance that though the plaintiff brought Awberry to his office and introduced him, the mission of Awberry was to secure a loan through the defendant who was engaged in a farm loan business in order to enable him to take up the option; that during the negotiations which resulted in the assignment, the plaintiff was present but had nothing further to do with the matter and that nothing was said between plaintiff and defendant about the option. Leaving out of consideration the settlement of June 8, the evidence would sustain a finding that the agreement was made
With respect to the settlement the defendant testified that during April and May, he had loaned plaintiff different sums of money which he agreed to repay in a few days; that these sums aggregated about $250; that plaintiff made payments from time to time; that at the time of the settlement, plaintiff not having money enough to discharge his indebtedness in full, defendant
The plaintiff was not present at the trial. His evidence was given by deposition. Being asked by his counsel what he had to say as to whether there was a full settlement of business between him and the defendant at that time, replied: “No, not on that deal. Yes, I executed a promissory note to him at that time. No, sir; that was not in settlement of this option contract business. The option contract business has never been settled between me and Schmidt.” The foregoing is all the evidence on this point.
In considering a case in which one of the defendants had executed promissory notes to plaintiff when, as he afterward claimed in an action by the plaintiff to collect the balance due on the notes, that the plaintiff was indebted to him at the timé the notes were executed, this court said: “The notes upon which the plaintiff seeks recovery were executed nearly a year afterward. The presumption obtains that defendants would not have executed these notes while the plaintiff was indebted to K. E. Hamilton in such a substantial sum
In a later case in which the circumstances were somewhat similar, it was said: “It is contrary to the experience and observation of mankind that one to whom another is indebted will borrow money from his debtor upon a promise to repay him and at the same time make no mention of a debt claimed to be due from the debtor. The presumption arising from such a transaction is that the lender is not indebted to the borrower.” (Crawford v. Pierse, 56 Mont. 371, 185 Pac. 315.)
Considering the facts as detailed by the defendant which the plaintiff did not controvert except by the bare statement quoted above, we do not think that plaintiff’s explanation was sufficient to overcome the presumption raised against him by his conduct. We are of the opinion that the evidence taken as a whole, viewing it in the light most favorable to the plaintiff, was not sufficient to sustain the court’s findings.
Upon the assumption that the contract had been made as alleged in the complaint, the plaintiff had earned his commission as soon as the assignment had been completed. Therefore, when the settlement was made, defendant was indebted to plaintiff for $3,600, the amount stipulated for in the contract.
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed and remanded.